R v Christie

[1993] QCA 461

[1993] QCA 461

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No 365 of 1993

Brisbane
[Re: Christie]

BETWEEN:

THE QUEEN

v.

DONOVAN KIMBALL CHRISTIE

(Applicant)

The President
Mr Justice Pincus

Mr Justice Mackenzie

Judgment delivered 19/11/1993

Reasons for judgment prepared by Pincus JA and Mackenzie J jointly and the President separately. Pincus JA and Mackenzie J agreeing in the order. The President dissenting.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - Sentence - whether non-custodial sentence appropriate
Counsel:	Mr D. Barakin for the Applicant Mr J. Hunter for the Respondent
Solicitors:	Legal Aid Office for the Applicant Director of Prosecutions for the Respondent

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.365 of 1993

Before The President
Mr Justice Pincus
Mr Justice Mackenzie

[R. v. Christie]

BETWEEN:

T H E Q U E E N

v.

DONAVAN KIMBALL CHRISTIE

(Applicant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 19/11/93
I am in substantial agreement with the judgment of Pincus JA and Mackenzie J.

However, in view of the applicant's youth and the policy considerations which underlie the Penalties and Sentences Act 1992, I would suspend the sentence of imprisonment imposed upon the applicant on the condition that he does not, for 2 years, commit an offence punishable by imprisonment.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No. 365 of 1993

Brisbane
Before The President

Pincus JA

Mackenzie J

[Re: Christie]

T H E Q U E E N
v.
DONOVAN KIMBALL CHRISTIE

(Applicant)

REASONS FOR JUDGMENT - PINCUS JA AND MACKENZIE J

Judgment delivered 19 November 1993

The applicant for leave to appeal against sentence is a 19 year old man who pleaded guilty at the Bundaberg Magistrates Court on 5th October, 1993 to one charge of supplying cannabis, possession of a mobile telephone used in connection with the commission of that offence and charges of possession of cannabis, methyamphetamine and lysergide.

After receiving information that the appellant would supply dangerous drugs in response to contact made through a mobile telephone a police officer arranged by that means to be supplied with $100 worth of cannabis. The applicant attended at the appointed place where he was detained and searched. Twenty-six grams of cannabis, a small quantity of methylamphetamine and the lysergide in the form of three tabs of LSD were found in his clothing. He declined to be interviewed and was arrested and charged. He had on 18th February, 1993 been convicted and fined for possession of a dangerous drug and a pipe. The Magistrate, in dealing with him for the present offences, sentenced him to six months imprisonment on the charge of supplying cannabis and two months imprisonment on the other charges. The solicitor representing the applicant told the Magistrate that the applicant had gone to the appointed place not to supply the person but to ascertain who he was. He told the Magistrate that the applicant's mother had actively encouraged her son to use cannabis in preference to alcohol (There was nothing to suggest that she had given encouragement in respect of other drugs). He submitted that a non-custodial sentence with provision for counselling was appropriate and that a sentence of imprisonment was inappropriate.

According to the police prosecutor's affidavit the Magistrate commented upon the applicant's young age, his previous history, the close proximity of the previous conviction to the present offences, the serious nature of the offences and his early plea of guilty.

It is submitted that the sentence is manifestly excessive.
We were referred to decisions of this Court in Mills (CA No
284/92, unreported, 11th November, 1992) and Condoleon (CA No
127/93, unreported, 4th August, 1993) in support of the
proposition. The facts in neither of those cases are directly
comparable but attention was drawn to the substitution in each
case of a non-custodial sentence in lieu of a custodial sentence
imposed by the sentencing judge. Neither Mills or Condoleon had
previous convictions. In Mills the applicant who was 29 had
grown three plants from which he harvested cannabis. He
supplied it to friends, mostly gratuitously, but on occasion
received favours in return. The matter was approached on the
basis that there was no true commercial element. He was treated
as a first offender who had pleaded guilty and had otherwise co-
operated with the police. A community service order was
substituted for an effective sentence of six months
imprisonment.
In Condoleon, where the applicant was 21 years of age,
there were pleas of guilty to nine charges of supplying cannabis
to minors and three of possession of cannabis for personal use.
It was a case of gratuitous supply to friends who, despite
their age, had been exposed to cannabis before Condoleon's
offences of supplying them. The Court said that the matter
would have presented a different aspect if it had been shown
that the applicant introduced the two young people to the drug
or forced it upon them. Condoleon was suffering from a
condition of depression and had excelled in sport at a high
level. An effective sentence of 18 months was set aside
entirely. She had served one month in prison before being
released on bail. But for that circumstance, community service
would have been ordered. In the present case the
Magistrate was entitled to take the view that the applicant was
prepared to offer to engage in a small scale commercial supply
of cannabis to a person who was unknown to him and that the
modus operandi was not unsophisticated by reason of the use of
the mobile telephone as the medium of contact. The possession
of methylamphetamine and lysergide (which is a First Schedule
drug) as well as cannabis adds a further serious aspect to the
matter. As the Magistrate observed, the offences occurred a
relatively short time after conviction for possession of
cannabis and a pipe.

Notwithstanding the matters of mitigation and the philosophy of the Penalties and Sentences Act that a sentence of imprisonment should only be imposed if, after having considered all available sentencing options, the court is satisfied that the sentence is appropriate in all the circumstances of the case and is no more severe than is necessary to achieve the purposes for which the sentence is imposed, in my opinion the Magistrate did not err in principle in this case in imposing a short custodial sentence reflecting the totality of the episode. I would refuse the application for leave to appeal against sentence.